IN THE CASE OF: 

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120009293 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous application to be permanently retired by reason of physical disability.

2.  Counsel states:

* On “2 February 2012,” the Department of Veterans Affairs (VA) granted the applicant a 30% disability rating for Post-Traumatic Stress Disorder (PTSD)

*	the applicant experienced PTSD symptoms since his active duty Army service and his symptoms include chronic sleep problems

* the Physical Evaluation Board (PEB) noted reports of insomnia, but held that the condition was not "unfitting" in terms of disability and fitness for service
* in light of the VA decision, the Board now has evidence that explains the Soldier's insomnia and sheds light on its origin
* the PEB erred in its assessment of the severity of the applicant's 0% rating for bilateral chondromalacia patellae 


*	the VA rated each knee 10% disabling due to chondromalacia patellae

* the applicant  should have been properly rated at a higher level than the 0% rating
* the applicant is a seriously disabled veteran presently rated with a 50% service-connected disability

3.  Counsel provides:

* Self-authored statements
* VA rating decision, dated 27 January 2012
* Congressional correspondence
* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, section 1552), dated 5 March 2012
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, AR20110007951, dated 29 November 2011
* Medical record extracts

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110007951, on 5 December 2011.

2.   Counsel has provided a copy of the applicant's 2012 VA rating decisional document which was not previously considered by the Board and warrants consideration at this time.

3.  On 8 February 2000, the applicant enlisted in the Regular Army.  He completed training and he was awarded military occupational specialties 92F (Petroleum Supply Specialist) and 44B (Metal Worker).  The highest rank/grade he attained while on active duty was sergeant (SGT)/E-5.

4.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated
27 October 2005 indicates:

* a complaint of intermittent right knee pain
* denial of trauma or injury, but pain after physical training (PT)
* examination of left knee was negative
* diagnosis of iliotibial band (ITB) strain
* treatment with naproxen and ace bandage


5.  An SF 600 dated 13 December 2005 indicates:

* a complaint of right knee pain
* pain began while running on treadmill in October 2005
* examination of the right knee indicated:

* no instability of:

* anterior cruciate ligament (ACL)
* posterior cruciate ligament (PCL)
* medial collateral ligament (MCL)
* lateral collateral ligament (LCL)

* no tenderness over medial joint line
* no tightness of hamstrings
* negative for Lachman's (ACL test)
* positive for patellar grind

* diagnosis of patellofemoral pain syndrome (PFPS)
* treatment with naprosyn

6.  The applicant underwent a PEB on 24 July 2007 at Fort Sam Houston, TX and he was evaluated for:

* bilateral chondromalacia patellae
* migraine headaches
* insomnia
* psoriasis
* hyperlipidemia 

7.  The PEB found him unfit due to bilateral chondromalacia patellae with limitation of motion due to pain and rated his disability percentage at 0%.  His 
migraines, insomnia, and psoriasis were determined not to be unfitting.  His hyperlipidemia was determined to be a condition not constituting a physical disability.

8.  Orders 218-0601, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, dated 6 August 2007, discharged the applicant by reason of physical disability effective 19 September 2007 with a 0% disability rating.  The disability was not the result of a combat-related injury or during performance of duty in combat-related operations.

9.  Counsel for the applicant provides a copy of his VA rating decision and medical record extracts.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES).  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  It provides:

	a.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

	b.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40–501 (Standards of Medical Fitness),
chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.

11.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, including officer procurement programs, and retention and separation, including retirement.  It provides, in pertinent part:

   a.  An individual, to be found unfit by reason of physical disability, must be unable to perform the duties of his/her office, grade, rank or rating.

	b.  Various medical conditions and physical defects may render a Soldier unfit for further military service, including, in paragraph 3-14e, chondromalacia manifested by frequent joint effusion, more than moderate interference with function, or with severe residuals from surgery.

12.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.

13.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at least 30%.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.

	a.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

	b.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

	c.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

15.  The Veterans Affairs Schedule for Rating Disabilities states, "In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met."

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request for reconsideration of the applicant's previously denied application for a permanent disability retirement was carefully considered.

2.  Records show the applicant complained of a painful right knee as a result of his running on a treadmill in 2005.  He was treated conservatively with non-steroidal anti-inflammatory drugs and support bandages.  He continued to complain and, in 2007, he was referred to the PDES.



3.  In July 2007, the applicant was given a PEB.  He was evaluated for knee pain, migraines, insomnia, psoriasis, and hyperlipidemia.  Only his knee pain was determined to be unfitting; however, he was rated 0% percent disabled because he did not meet requirements for a compensable evaluation for chondromalacia.

4.  Although operating under different rules and authority, counsel provides a copy of his VA rating decision.  However, he does not provide any evidence to overturn the decision reached by the PEB.

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  There is insufficient evidence to show the applicant was diagnosed with PTSD at the time of his discharge.  Further, the VA rating decisional document shows the applicant had full and painless motion in his right knee and full but painful left knee motion in 2011, without surgery and over 4 years after discharge.  Accordingly, and unlike the Army, the VA can evaluate a veteran throughout his or her lifetime and adjust the percentage of disability based upon the findings.  The applicant was properly rated for his conditions at the time.  There is no evidence to support a different rating.

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations.  There is no error or injustice in this case.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X    _  ___ X_  _  ___ X__      DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 


are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110007951, dated 29 November 2011.



      ___________X__________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120009293



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ABCMR Record of Proceedings (cont)                                         AR20120009293



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